Edgar Diaz Lopez v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-2797
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EDGAR ADALY DIAZ LOPEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A087-899-379)
Immigration Judge: Audra Behne
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Submitted Under Third Circuit L.A.R. 34.1(a)
on November 17, 2021
Before: CHAGARES, Chief Judge, and BIBAS and FUENTES, Circuit Judges
(Filed: December 21, 2021)
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OPINION*
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BIBAS, Circuit Judge.
If a party loses in three different ways, he cannot win by appealing only one. That is
what happened here. Edgar Diaz Lopez is a Guatemalan citizen. In 2009, his brother Jose
witnessed two murders and was himself murdered. The killers then threatened Diaz too,
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
telling him to leave Guatemala or be killed. Diaz fled to the United States but was stopped
at the border and removed to Guatemala.
Upon his return, Diaz relocated elsewhere in Guatemala to avoid trouble. Still, the kill-
ers threatened and shot at him. This time, he went to the police but did not identify the
assailants. Without their names, police could not do much to protect him. So he returned
to the United States illegally.
In 2019, Diaz was caught again in this country and his previous removal order was
reinstated. This time, Diaz expressed fear of returning to Guatemala. He sought withhold-
ing of removal as a witness to violent crime and as a member of a targeted family. He also
invoked protection under the Convention Against Torture.
After a video hearing, the immigration judge rejected both claims. 8 U.S.C.
§ 1229a(b)(2)(A)(iii) (authorizing videoconferencing); 8 C.F.R. § 1003.25(c) (same). She
rejected his withholding claim for three reasons: First, he had not shown that the Guatema-
lan government was “unable or unwilling” to stop any persecution. Galeas Figueroa v.
Att’y Gen., 998 F.3d 77, 86–87 (3d Cir. 2021) (internal quotation marks omitted). Second,
the judge thought he could have stayed safe by relocating within Guatemala again, as his
parents had done. See 8 C.F.R. § 208.16(b)(1)(i)(B). And finally, potential witnesses are
not a distinct social group. Nor were most families, under Matter of L-E-A-, 27 I&N Dec.
581, 582 (A.G. 2019). The judge also rejected his Convention claim because she found no
proof that the Guatemalan government would acquiesce in his torture. See 8.C.F.R.
§ 208.18(a)(7).
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Diaz appealed only some of these rulings. He disputed the refusal to consider family or
witness status. But he did not dispute that he could have relocated. Nor did he argue that
the Guatemalan government was unable or unwilling to protect him. With those points
forfeited, the Board of Immigration Appeals held that even if he were credible, Diaz could
not show that he merited withholding. It also agreed that he did not belong to a protected
social group. The Board affirmed the denial of relief under the Convention.
Diaz now petitions us for review. We have jurisdiction under 8 U.S.C. § 1252. We re-
view the Board’s decision for substantial evidence. Dia v. Ashcroft, 353 F.3d 228, 247–49
(3d Cir. 2003) (en banc).
On appeal, Diaz’s withholding claim is stronger in one way: as he had hoped, the cur-
rent Attorney General has walked back a prior decision restricting when family status
counts as a protected social group. See Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021)
(vacating Matter of L-E-A-, 27 I&N. Dec. 581 (A.G. 2019)). But that does not save him.
Diaz still cannot show eligibility because he failed to appeal the immigration judge’s find-
ings on relocation and persecution. So he forfeited both arguments; we thus lack jurisdic-
tion to review them now. Lin v. Att’y Gen., 543 F.3d 114, 120–21 (3d Cir. 2008). And
losing either is fatal to his petition.
Diaz’s Convention claim fares no better. True, he provided evidence that Guatemala
has only “weak” mechanisms for reporting torture. AR 294. And he noted “reports alleg-
ing” that government workers may have used torture at one Guatemalan hospital. Id. But
this country-conditions evidence was insufficient to establish that Guatemala would acqui-
esce in his torture. Instead, Diaz needed other “circumstantial evidence” tying a general
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risk of torture to his own situation. See Pieschacon-Villegas v. Att’y Gen., 671 F.3d 303,
311 (3d Cir. 2011), abrogated on other grounds by Nasrallah v. Barr, 140 S. Ct. 1683(2020).
Here, circumstantial evidence cuts against acquiescence. As the Board noted, “the
[Guatemalan] police documented [his] complaint and offered what protection they could
with the limited information they had about the incident.” AR 5. Their response does not
suggest acquiescence or willful blindness to torture, so Diaz has no right to protection under
the Convention. We will thus deny his petition for review.
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